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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Kennedy v. Municipality of Anchorage (8/16/2013) sp-6809

Kennedy v. Municipality of Anchorage (8/16/2013) sp-6809

         Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

         Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

         303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  



ALVIN KENNEDY and                                       )  

ELIEZER FELICIANO,                                      )         Supreme Court No. S-14762  


                            Petitioners,                )         Superior Court No. 3AN-10-08865 CI  


         v.	                                            )         O P I N I O N  


MUNICIPALITY OF ANCHORAGE, )                                      No. 6809 - August 16, 2013  


                            Respondent.	                )


                   Petition for Review from the Superior Court of the State of  

                   Alaska, Third Judicial District, Anchorage, Frank A. Pfiffner,  


                   Appearances:            Kenneth        W.     Legacki,       Anchorage,         for  


                   Petitioners.  Linda J. Johnson, Clapp, Peterson, Tiemessen,  

                   Thorsness & Johnson, LLC, Anchorage, Todd K. Sherwood,  


                   Assistant  Municipal  Attorney,  and  Dennis  A.  Wheeler,  

                   Municipal Attorney, Anchorage, for Respondent.  Jeffrey J.  


                   Barber,  Barber  &  Banker,  LLC,  Anchorage,  for  Amicus  


                   Curiae Alaska Association for Justice.  

                   Before:  Fabe, Chief Justice, Winfree, Maassen, and Bolger,  

                   Justices. [Stowers, Justice, not participating.]  


                   BOLGER,  Justice.  


                   Two  former  police  officers  brought  claims  against  the  Municipality  of  


Anchorage for racial discrimination, alleging a hostile work environment in violation of  


----------------------- Page 2-----------------------

state law. The officers claimed damages for mental anguish, and the Municipality sought        

discovery concerning the nature of their mental anguish claims.   But the officers refused  

to comply with these discovery requests, invoking the physician and psychotherapist           

privilege.   The Municipality moved for an order to compel the officers to sign releases  

authorizing the disclosure of medical, pharmacy, and psychological counseling records,  

which the superior court granted.  The officers then petitioned this court for review of  


the order. Upon review, we conclude that the assertion of garden-variety mental anguish  


claims in an employment discrimination case does not automatically waive the physician  

and psychotherapist privilege.  


           A.         The Officers’ Claims Under AS 18.80.220  

                      Alvin Kennedy and Eliezer Feliciano (the officers) were police officers with  

the Anchorage Police Department (APD) who sued the Municipality of Anchorage (the  


Municipality) for racial discrimination and retaliation.  Kennedy is African-American,  


and Feliciano is Hispanic.  They alleged that the Municipality violated state law because  


APD created a hostile work environment for the officers, in which they were treated  

                                                       1  The alleged discrimination includes racially-profiled  

disparately because of their races.                                                                    

traffic stops, disparate discipline for questionable investigative searches, hostile remarks  


and actions concerning the undercover clothing worn by minority officers, reassignment  


from other units, denial of performance pay increases and promotions, and a retaliatory  


police investigation.  Both claim damages for mental anguish.  

                      In response to discovery requests from the Municipality, each officer stated  

how the alleged discrimination had affected him.  Kennedy reported that he was “very  


           1          See AS 18.80.220(a)(1) (prohibiting employment discrimination on the  

basis of race).  

                                                                      -2-                                                                   6809  

----------------------- Page 3-----------------------

angry, disappointed and occasionally sad.”  He stated that his “trust levels [were] very           

low” and that he was “discouraged and disappointed” by the actions of the Municipality  

and APD.  

                   Feliciano stated that he was “disturbed” by the alleged discrimination.  He  


                   The  conduct  of  the  APD  has  given  me  the  feeling  that  


                   everything I have done throughout my career has been for  

                   naught.    I  feel  sad,  resulting  in  lower  activity  and  feeling  

                   anxious, empty, hopeless, helpless, worthless, guilty, irritable  

                   and restless.  I have experienced insomnia, fatigue, loss of  

                   energy, aches and pains, and a strained relationship with my  


                   wife and children.  

                   Both officers alleged that they had to retire because of the discrimination  


they suffered at APD.  Both asserted that they had not sought any medical treatment or  


counseling, nor taken any medication related to their mental anguish claims.  

          B.       Proceedings Below  

                   The   officers   filed   a   complaint   in   June   2010   alleging   employment  

discrimination.    They  amended  this  complaint  in  June  2011  to  include  claims  for  

retaliation and mental anguish.  The Municipality sought discovery, requesting that the  


officers  (1)  identify  all  medical  professionals,  counselors,  and  pharmacies  that  had  


provided them services since 2005; (2) produce copies of all medical and counseling  


records since 2005; and (3) sign releases for the same information.  The officers refused  

to comply with these requests.  


                   In March 2012 the Municipality filed a motion to compel the officers to  


sign releases for medical, counseling, and pharmacy records.  The Municipality argued  


that it was entitled to discovery of the officers’ medical records because the officers had  

put  their  medical  histories  at  issue  by  seeking  damages  for  mental  anguish.    The  

Municipality contended that such records were necessary to determine whether there was  

                                                            -3-                                                      6809

----------------------- Page 4-----------------------

any medical evidence of mental anguish and whether the officers’ alleged mental anguish  

was caused by other factors unrelated to their discrimination claims.  


                      The officers opposed the motion to compel. They asserted that they had not  


received any treatment or medication in response to the alleged racial discrimination, and  


they would not rely on expert medical testimony to establish damages. They argued that  


because they merely asserted garden-variety mental anguish claims, there was no waiver  

of  the  physician  and  psychotherapist  privilege.                                   The  superior  court  granted  the  

Municipality’s  motion  to  compel  and  ordered  the  officers  to  provide  the  requested  

medical releases.  


                      We  granted  review,  directing  the  parties  to  brief  the  following  issues:  


(1)  Should  the  assertion  of  garden-variety  mental  anguish  claims  in  employment  


discrimination cases automatically waive a claimant’s physician and psychotherapist  

privilege?  (2)  If  not,  (a)  How  should  garden-variety  claims  of  mental  anguish  be  


defined? (b) Are the mental anguish claims of each of the officers in this case garden- 


variety claims? (c) What are the proof limitations that should be imposed on claims for  


mental anguish where there is no waiver of the physician and psychotherapist privilege?  



                      Whether           the     assertion          of    garden-variety              mental         anguish         claims  



automatically waives the physician and psychotherapist privilege is a question of law. 

We exercise our independent judgment on questions of law, adopting “the rule of law  


that is most persuasive in light of precedent, reason and policy.”3  


           2          See Mathis v. Hilderbrand, 416 P.2d 8, 8-10 (Alaska 1966) (reviewing de   

novo whether plaintiff waived the physician-patient privilege by filing suit for personal   




                      Cf. Langdon v. Champion, 752 P.2d 999, 1001 (Alaska 1988) (quoting  


                                                                     -4-                                                               6809

----------------------- Page 5-----------------------


          A.	        Mental Anguish Damages Are Available For Violations Of 

                      AS 18.80.220.  

                     Alaska Statute 18.80.220(a)(1) prohibits racial discrimination in hiring,  

promotion, compensation, and other terms, conditions, or privileges of employment.  In  


Johnson v. Alaska State Department of Fish & Game , we held that damages for mental  


                                                                                            4   We  explained  that  such  

anguish  claims  are  available  for  violations  of  this  statute.     

damages must be limited to “actual damages — that is, to all those damages directly and  


naturally resulting, in the ordinary course of events, from the injury in question.”5                                            We  


held that while such damages should not be presumed, “[a] complainant’s own testimony  

may establish the fact and the quantum of damages.”6  


                     The Municipality suggests that our holding in Johnson supports a finding  

of waiver of the privilege in this case.  It contends that applying the privilege would  


essentially exempt the officers from the requirement to prove mental anguish damages.  


This argument is not persuasive.  Johnson holds that a complainant’s own testimony may  

           3         (...continued)  

Brooks v. Brooks , 733 P.2d 1044, 1055 (Alaska 1987)) (citing  Walsh v. Emerick, 611  

P.2d 28, 30 (Alaska 1980)).  

           4         836 P.2d 896, 914 (Alaska 1991) (construing AS 22.10.020(i) to determine   

the remedies available for violations of AS 18.80).   

           5         Id. at 915 (quoting Mitchell v. Seaboard Sys. R.R. , 883 F.2d 451, 453 (6th  


Cir.  1989))  (internal  quotation  marks  omitted)  (citing  Brewster  v.  Martin  Marietta  


Aluminum Sales, Inc. , 378 N.W.2d 558, 569 (Mich. App. 1985)).  



                     Id. (citing Cullen v. Nassau Cnty. Civil Serv. Comm’n, 425 N.E.2d 858, 861  

(N.Y.  1981)).  

                                                                 -5-	                                                         6809

----------------------- Page 6-----------------------

establish the fact and amount of damages; it did not mandate that such testimony must  


be supported by medical records or expert testimony.7  

          B.	      The  Assertion  Of  Garden-Variety  Mental  Anguish  Claims  In  A  

                   Discrimination  Case  Does  Not  Automatically  Waive  A  Claimant’s  

                   Physician And Psychotherapist Privilege.  

                   1.	       The physician and psychotherapist privilege  

                   As a general matter, the Municipality is entitled to discover any relevant,  



unprivileged   information.                 The  physician   and   psychotherapist  privilege   covers  


“confidential communications made for the purpose of diagnosis or treatment of the  

                                                                          9  But this privilege does not apply  

patient’s physical, mental or emotional conditions.”  


“to communications relevant to the physical, mental or emotional condition of the patient  


          7        See id.  To the extent the Municipality makes a sufficiency-of-the-evidence  

argument, such an argument is misplaced:  Because the parties have not yet presented  

evidence of their mental anguish at trial, a determination of whether such evidence is  


sufficient to support an award cannot yet be made.   

          8	       Alaska Civil Rule 26(b)(1) provides:  

                   Parties  may  obtain  discovery  regarding  any  matter,  not  


                   privileged which is relevant to the subject matter involved in  

                   the pending action, whether it relates to the claim or defense  


                   of the party seeking discovery or to the claim or defense of  

                   any other party, including the existence, description, nature,  


                   custody, condition and location of any books, documents, or  

                   other tangible things and the identity and location of persons  


                   having       knowledge          of    any     discoverable         matter.      The  

                   information sought need not be admissible at the trial if the  

                   information sought appears reasonably calculated to lead to  


                   the discovery of admissible evidence.  

          9        Alaska R. Evid. 504(b).  

                                                            -6-	                                                     6809

----------------------- Page 7-----------------------

in any proceeding in which the condition of the patient is an element of the claim or  


defense of the patient.”                

                    The critical question is whether the officers have placed their mental or  

emotional  conditions  at  issue  by  asserting  a  claim  for  mental  anguish  damages  and  


thereby waived the privilege.                    The Municipality argues that the officers’ request for  


mental anguish damages has put their mental state at issue and suggests this request  


automatically waives the privilege.  The officers respond that they have asserted claims  


for  only  the  sort  of  mental  anguish  that  any  normal,  well-adjusted  person  would  


experience under the circumstances, and they consequently urge this court to hold that  

the assertion of such garden-variety mental anguish claims does not waive the privilege.  


The officers further contend that their medical records are not relevant because they did  


not seek medical treatment related to their mental anguish claims and will not rely on any  

expert testimony or medical records.  

                    2.        The broad approach to waiver  

                    Other  courts  have  not  taken  a  consistent  approach  to  whether  mental  

anguish claims waive the physician and psychotherapist privilege.  Courts taking a broad  

approach  hold  that  the  privilege12  is  waived  whenever  the  patient  alleges  emotional  

          10        Alaska R. Evid. 504(d)(1).  

          11        Cf.  Trans-World  Invs.  v.  Drobny,   554  P.2d  1148,  1151  (Alaska  1976)  

(“[W]e  hold  that  the  filing  of  a  personal  injury  action  waives  the  physician-patient  

privilege as to all information concerning the health and medical history relevant to the  


matters which the plaintiff has put in issue.”) (citing 8 JOHN H.   WIGMORE , EVIDENCE  

§ 2389 (McNaughton rev. 1961); Collins v. Blair, 268 N.E.2d 95 (Ind. 1971)).  

          12        Although this is a question of first impression in Alaska, other courts have   

considered the same issue under analogous provisions of law.  We therefore look to  

authority from other jurisdictions in interpreting Alaska law.  

                                                               -7-                                                         6809

----------------------- Page 8-----------------------

             13                                                                                                                       14 


distress.         The rationale behind this broad approach to waiver is rooted in fairness.  


That is, if a plaintiff claims emotional distress, then a defendant must be able to challenge  


that claim; for example, psychiatric records may point to sources of emotional distress  


other than the defendant’s conduct.                          

           13        See Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131, 136 (E.D. Pa. 2001)  

(holding that plaintiffs alleging a violation of Title VII of the Civil Rights Act of 1964  


waived  the psychotherapist privilege by  alleging  emotional  distress); Doe v. City of  


Chula  Vista,  196  F.R.D.  562,  568-69  (S.D.  Cal.  1999)  (holding  that  plaintiff  in  

employment discrimination case seeking to recover $1,000,000 for severe emotional  


distress relied on her emotional condition as an element of her claim and waived the  

privilege);  Sarko  v.  Penn–Del  Directory  Co.,  170  F.R.D.  127,  130  (E.D.  Pa.  1997)  


(holding plaintiff in Americans with Disabilities Act suit who alleged defendant did not  


accommodate her depression waived psychotherapist privilege).  



                     See, e.g., EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D.  


Cal. 2009) (stating that defendant “should be able to determine whether [p]laintiff’s  


emotional state may have been effected by something other than [d]efendant’s alleged  


actions”);  Doe,  196  F.R.D.  at  569  (“Defendants  must  be  free  to  test  the  truth  of  


[plaintiff’s]  contention  that  she  is  emotionally  upset  because  of  the  defendants’  

conduct.”); Sarko, 170 F.R.D. at 130 (“[W]e agree that allowing a plaintiff to hide []  

behind a claim of privilege when that condition is placed directly at issue in a case would  


simply be contrary to the most basic sense of fairness and justice.”) (quoting Premack  


v. J.C.J. Ogar, Inc. , 148 F.R.D. 140, 145 (E.D. Pa. 1993)) (internal quotations marks  





                     See  Fitzgerald  v.  Cassil,  216  F.R.D.  632,  636-38  (N.D.  Cal.  2003)  


(examining rationales behind different approaches to waiver); cf. Dudley v. Stevens, 338  


S.W.3d 774, 777 (Ky. 2011), modified (June 16, 2011) (holding that claim for garden- 


variety emotional damages in personal injury action waived privilege because “it would  


be fundamentally unfair to permit [plaintiff] to allege and prove mental anguish caused  


by the negligence while denying [defendants] from reviewing her mental health records  

for the possibility of pre-existing mental conditions”).  

                                                                  -8-                                                           6809

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                     In  one  of the  cases  primarily  relied  upon  by  the  Municipality, Hyde v.  

                                                     16  the  Michigan  Court  of  Appeals  concluded  that  a  

University  of  Michigan  Regents,  


plaintiff  claiming  any  type  of  emotional  distress  damages  in  connection  with  his  


employment discrimination claim had waived the privilege.    The court found that any  


allegation of emotional distress — including  “pain and suffering, mental distress, hurt  


feelings, embarrassment, and so forth” — automatically waived the privilege; and it held  


that if the plaintiff wanted to avoid waiver he must withdraw any claim for noneconomic  



damages.           But Hyde is distinguishable because it is based in part on a provision in the  


Michigan civil rules, providing that if a party claims a medical privilege in discovery, he  

may not thereafter introduce any evidence relating to the condition for which he has  



claimed the privilege.                 Moreover, the result in Hyde  has been criticized by another  

Michigan  appellate  court  for  being  contrary  to  the  majority  of  the  courts  that  have  

addressed this issue.20  

           16        575 N.W.2d 36 (Mich. App. 1997).  

           17        Id. at 38.  

           18        Id. at 42.  

           19        See id.   Michigan Court Rule 2.314(B)(2) provides: “[I]f a party asserts that          

the  medical  information  is  subject  to  a  privilege  and  the  assertion   has  the  effect  of  

preventing  discovery  of  medical   information  otherwise  discoverable  under  MCR  

2.302(B), the party may not thereafter present or introduce any physical, documentary,   

or testimonial evidence relating to the party’s medical history or mental or physical  




                     See LeGendre v. Monroe Cnty. , 600 N.W.2d 78, 87-90 (Mich. App. 1999)  

(disagreeing with result in Hyde because it contravenes rule that the “in controversy”  


requirement is not met “by mere conclusory allegations of the pleadings or by mere  


relevance to the case, and because it is contrary to the results reached by the majority of  


courts that have addressed the issue”); see also Mara Kent & Thomas Kent, Michigan  


                                                                  -9-                                                           6809

----------------------- Page 10-----------------------


                   Notably, many of the decisions applying a broad view of waiver involve  

circumstances that placed the plaintiff’s mental condition more directly at issue than the  

simple  assertion  of  garden-variety  mental  anguish.    These  circumstances  include:  a  

plaintiff who claimed her employer violated the Americans with Disabilities Act by  

failing to accommodate her depression,21 a plaintiff who sought $1,000,000 for severe  


emotional  distress,            and  plaintiffs  who  had  received  treatment  for  their  emotional  


distress.       These allegations of diagnosable conditions, severe emotional distress, and  

conditions requiring psychiatric treatment are more serious than mere garden-variety  

claims; as such, we do not find these cases to be particularly persuasive on the issue  

before us.  


                   3.        A narrower approach to waiver  

                    Some courts hold that the physician and psychotherapist privilege is waived  


only  when  the  plaintiff  introduces  the  privileged  communications  themselves  as  

          20       (...continued)  

Civil Rights Claimants: Should They Be Required to Give Up Their Physician-Patient  

Privilege When Alleging Garden-Variety Emotional Distress? , 77 U. D 

                                                                                                         ET .   MERCY  L.  



   EV . 479, 479, 499 (2000) (noting that Hyde  “clearly departs from the overwhelming  

majority of federal courts that have considered the issue” and criticizing Hyde  for its  


failure  to  analyze  relevant  federal  precedent  or  consider  the  potential  for  abuse  by  




                   Sarko v. Penn–Del Directory Co., 170 F.R.D. 127, 129-30 (E.D. Pa. 1997).  

          22       Doe v. City of Chula Vista , 196 F.R.D. 562, 568-69 (S.D. Cal. 1999).  



                   See EEOC v. Cal. Psychiatric Transitions, 258 F.R.D. 391, 400 (E.D. Cal.  


2009) (noting that plaintiff’s treatment for depression “suggests that multiple causation  


for her emotional distress may exist”); Sanchez v. U.S. Airways, Inc., 202 F.R.D. 131,  

133  (E.D.  Pa.  2001)  (noting  that  plaintiffs  had  received  treatment  for  mental  and  

emotional distress caused by the alleged unlawful conduct).  

                                                            -10-                                                      6809

----------------------- Page 11-----------------------



evidence.         Courts adhering to this narrow view generally deem the privacy interests  


                                                                                      By precluding plaintiffs from  

inherent in the privilege to be of paramount importance.  

relying  on  the  privileged  communications  to  further  their  own  claim,  this  approach  

“prevents the privilege from being used as both a shield and a sword.”26  


                    There  is  a  middle  ground.  Some  courts  allow  discovery  for  serious  


psychological conditions, but recognize the physician and psychotherapist privilege for  


garden-variety mental anguish claims.                       The Missouri Supreme Court adopted this view  


in State ex rel. Dean v. Cunningham , which concerned a claim for emotional distress in  


the context of a sex discrimination suit.                     There, the court held that a plaintiff claiming  

emotional   distress   damages   in   an   antidiscrimination   suit   is   protected   by   the  


psychotherapist privilege where:  “ her claim [(1)] is only for such emotional distress and  

          24        See,  e.g.,  Fitzgerald   v.  Cassil,  216  F.R.D.  632,  639  (N.D.  Cal.  2003)  

(holding privilege not waived in housing discrimination suit seeking  emotional distress  

damages where plaintiffs stipulated they would not “rely on any treating psychotherapist  


or other expert” to prove emotional distress); Hucko v. City of Oak Forest , 185 F.R.D.  


526, 529-31 (N.D. Ill. 1999) (finding no waiver where plaintiff did not intend to offer  

evidence of his psychotherapy, testify about doctor’s advice, or offer independent expert  


testimony to prove his claim of emotional harm);  Vanderbilt v. Town of Chilmark, 174  


F.R.D. 225, 228-30 (D. Mass. 1997) (holding that plaintiff in discrimination suit seeking  


damages for emotional distress did not waive privilege because she did not introduce  

communications with psychotherapist into evidence).  

          25        See, e.g., Vanderbilt, 174 F.R.D. at 229 (analyzing federal privilege).  

          26        Fitzgerald , 216 F.R.D. at 637.  



                    See, e.g., EEOC v. Wal-Mart Stores, Inc., 276 F.R.D. 637, 641 (E.D. Wash.  

2011) (holding that plaintiff had not waived privilege where he alleged only garden- 


variety      mental       anguish        and     had     not     affirmatively         relied     on     any     privileged  


          28        182 S.W.3d 561, 563-64  (Mo. 2006).  

                                                             -11-                                                        6809

----------------------- Page 12-----------------------

humiliation that an ordinary person would experience under the circumstances or that  

may be inferred from the circumstances, and (2) is not to be supported by any evidence  


                                                                                                                         The Cunningham  

of medical or psychological treatment for a diagnosable condition.” 

court thus based its decision on both the nature of the mental anguish claims and the fact       

that the plaintiff had not introduced any privileged communications into the lawsuit.   


                       In Cunningham, the plaintiff had asserted that she sought no treatment for  


mental anguish, had not requested a specific dollar amount for damages, and had sought  


only  garden-variety  mental  anguish  damages.                                           In  these  circumstances,  the  court  

concluded that evidence of the plaintiff’s “medically or psychologically diagnosable  


mental  or  physical  condition  is  irrelevant  to  the  question  of  whether  she  suffered  


‘garden[-]variety’ emotional distress  as  a  result of the incidents pleaded” in her sex  


discrimination claim.                      

                       The Cunningham court explained that its holding should not prejudice the  



                        [T]he  corollary  to  Dean’s  denial  that  she  has  a  medically  

                       diagnosable injury is that the defense is entitled to bring that  

                       fact  to  the  attention  of  the  jury,  through  her  answers  to  


                       interrogatories, through cross-examination or otherwise.  In  


                       other words, the defense may show that Dean’s emotional  

                       distress  and  humiliation  were  not  so  severe  as  to  require  



                       medical or physical consultation or treatment.  


The court also noted that its holding precluded the plaintiff from claiming a medically  

diagnosable injury, such as depression:  If the plaintiff contended that she was treated for  

            29         Id. at 569.  

            30         Id. at 567.  

            31         Id. at 568.  

            32         Id. at 569.  

                                                                        -12-                                                                   6809

----------------------- Page 13-----------------------



depression resulting from the defendants’ alleged acts, the privilege would be waived. 


Many courts in other jurisdictions have adopted a similar approach.                                          


                     This narrower approach to waiver is consistent with our previous decisions  


construing Alaska Civil Rule 35(a). This rule provides that a court cannot order a mental  

examination  unless  the  movant  shows  that  the  other  party’s  mental  condition  is  “in  


                                                                                                       Some federal courts  

controversy” and that there is “good cause” for an examination. 

have noted that “determining whether the plaintiff has placed her mental condition at  

issue  so  as  to  waive  the  [psychotherapist]  privilege  is  analogous  to,  and  should  be  


generally consistent with, the analysis  conducted when a Rule 35(a) examination is  



                     Our cases interpreting the “in controversy” requirement of Rule 35(a) are  


therefore instructive.  “To be ‘in controversy’  means to be ‘directly involved in some  

          33         Id.  

          34         See, e.g.,  Ruhlmann v. Ulster Cnty. Dep’t of Soc. Servs.                             , 194 F.R.D. 445,  

450 (N.D.N.Y. 2000) (“[A] party does not put his or her emotional condition in issue by   

merely  seeking   incidental,  ‘garden-variety,’  emotional  distress  damages,  without  

more.”); Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999) (holding that  

plaintiff avoided waiver of privilege where she had restricted her claims to humiliation,  


embarrassment, anger, and other similar emotions, and was barred from introducing  

medical evidence at trial); Kent, supra note 20, at 490-96 (collecting cases).  



                     Alaska R. Civ. P. 35(a). Federal Civil Rule 35(a) also provides that a court  


may order a party whose mental condition is “in controversy” to submit to a mental  




                     Stevenson v. Stanley Bostitch, Inc., 201 F.R.D. 551, 557 (N.D. Ga. 2001);  

see also Jackson v. Chubb Corp., 193 F.R.D. 216, 225 n.8 (D.N.J. 2000) (noting that  


“[i]n the analogous context of requiring a plaintiff to undergo a mental examination  

pursuant to Federal Rule of Civil Procedure 35(a), courts have generally found that  

‘garden[-]variety’  emotional distress does not satisfy the rule’s requirement that the  

plaintiff’s mental condition must be ‘in controversy’ ” and citing cases).  

                                                                -13-                                                          6809

----------------------- Page 14-----------------------



material element of the cause of action or a defense.’ ”                            We have cautioned that this  

requirement should not be disregarded:  

                   Civil Rule 35(a) should be invoked cautiously, only after the  


                   movant has demonstrated sufficient justification for a mental  

                   or physical examination.  This ensures that trial courts can  

                   guard against misuse of Civil Rule 35(a) as an unwarranted  

                   mechanism for discovering mental or physical issues absent  


                   good reason to believe that such issues actually exist.  

Most  other  courts  addressing  this  issue  have  held  that  employment  discrimination  


plaintiffs do not place their mental condition “in controversy” by alleging garden-variety  


emotional distress.            

                   We find the rationale underlying this narrower approach to waiver more  

persuasive.  Garden-variety mental anguish claims are sufficiently limited in scope to  


alleviate the Municipality’s concerns regarding fairness to defendants.  If the officers do  

not  allege  that  they  have  a  medically  diagnosable  injury  or  that  they  have  received  

          37       Alyssa B. v. State, Dep’t of Health & Soc. Servs ., 123 P.3d 646, 650 (Alaska             

2005) (quoting Dingeman v. Dingeman , 865 P.2d 94, 99 (Alaska 1993)).  

          38       Id. at 650-51 (footnote omitted).  



                   Stevenson, 201 F.R.D. at 553; see also Ricks v. Abbott Labs., 198 F.R.D.  

647, 648 (D. Md. 2001) (noting that the majority of courts have held that a plaintiff’s  

mental condition is not placed “in controversy” by simply making a claim for emotional  

damages as part of an employment discrimination claim, unless she asserts a specific  


cause of action for the infliction of emotional distress, alleges a specific disorder, alleges  


unusually severe distress, offers expert testimony in support of her claim for emotional  

distress, or concedes that her mental condition is “in controversy”); LeGendre v. Monroe  

Cnty., 600 N.W.2d 78, 87-90 (Mich. App. 1999) (collecting cases).  

                                                            -14-                                                      6809

----------------------- Page 15-----------------------


treatment related to their emotional distress, the Municipality is entitled to bring this  

information to the jury’s attention.40  

                    Moreover,   wide-ranging   inquiry   into   an   individual’s   medical   and  


                                                                                                    Litigants should not  

psychiatric history could deter legitimate discrimination claims. 


be  forced  to  choose  between  disclosing  highly  personal  medical  information  and  


asserting claims for distress that any healthy individual would likely suffer as a result of  

discrimination.  Our cautious approach should achieve an appropriate balance between  


a defendant’s interest in fair disclosure, the privacy interest protected by the physician  


and psychotherapist privilege, and the societal values promoted by state law.                                           


          C.	       Some  Of  The  Mental  Anguish  Claims  In  This  Case  Are  Garden- 

                    Variety Claims.  

                    The officers assert that they suffered only garden-variety mental anguish  


as a result of the Municipality’s discriminatory conduct. They point out that they did not  

          40        See State ex rel. Dean v. Cunningham , 182 S.W.3d 561, 569 (Mo. 2006);  

see also Fitzgerald v. Cassil , 216 F.R.D. 632, 638 (N.D. Cal. 2003) (listing the defense’s  


ability to cross-examine the plaintiff “about other stressors or contributing factors that  

may  explain  or  have  contributed  to  the  alleged  emotional  distress,”  present  other  


evidence to show that a plaintiff’s description of her distress is exaggerated, and elicit  


from the plaintiff the fact that the plaintiff did not seek treatment or therapy for such  

distress as “numerous avenues” through which a defendant can make its case without  

access to confidential medical records).  



                    Cunningham, 182 S.W.3d at 566; see also Taylor v. ABT Elecs., Inc., No.  


05 C 576, 2007 WL 1455842, at *2-3 (N.D. Ill. May 14, 2007) (holding assertion of  


garden-variety  emotional  distress  claims  does  not  waive  privilege  and  noting  that  


“allowing such discovery would discourage people from coming forward to bring these  

kinds of [civil rights] claims if as a result their whole life becomes an open book”)  

(internal quotation marks omitted).  



                     AS 18.80.200(b) (“[I]t is the policy of the state and the purpose of this  

chapter to eliminate and prevent discrimination in employment . . . .”).  

                                                              -15-	                                                        6809

----------------------- Page 16-----------------------

receive medical treatment for emotional distress and that their claims can be established  


by lay testimony.  They suggest that their reactions to APD’s alleged discriminatory  


conduct were normal considering the stresses unique to their positions as police officers.  


                    The Municipality argues that the officers’ claims are not garden-variety  


claims.    Specifically,  it  asserts  that  Feliciano’s  claims  of  aches  and  pains,  fatigue,  


insomnia, loss of energy, and relationship issues with his family are not the foreseeable  


result  of  a  hostile  work  environment.                     The  Municipality  contends  that  Feliciano’s  


physical symptoms could be due to a number of medical ailments and that his emotional  


reactions are not typical or proportionate to the magnitude of the alleged discrimination.  


The  Municipality  also  argues  that  Kennedy’s  claims  are  not  garden-variety  claims  

because they “go further than expressing mere emotions.”  

                    “Garden-variety” means ordinary or commonplace.43  



claims  refer  to  claims  for  compensation  for  nothing  more  than  the  distress  that  any  



healthy, well-adjusted person  would  likely feel as a result of being so victimized.” 


They are restricted  to “the negative emotions that [a plaintiff] experience[s] essentially  



as the intrinsic result of the defendant’s alleged conduct.”                               Claims fall within the ambit  


of garden-variety anguish where they “do[] not exceed the suffering and loss an ordinary  


person would likely experience in similar circumstances, and constitute[] matters that are  

          43        MERRIAM -WEBSTER ’S COLLEGIATE DICTIONARY 480 (10th ed. 1998); see  

also GARNER ’S DICTIONARY OF LEGAL USAGE 386 (3d ed. 2011) (defining garden variety  

as “of the ordinary or familiar kind”).  

          44        Jacobs v. Conn. Cmty. Technical Colls. , 258 F.R.D. 192, 196 (D. Conn.   

2009) (quoting EEOC v. Nichols Gas & Oil, Inc. , 256 F.R.D. 114, 121 (W.D.N.Y. 2009))   

(internal quotation marks omitted).  

          45        Santelli v. Electro-Motive, 188 F.R.D. 306, 309 (N.D. Ill. 1999).  

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----------------------- Page 17-----------------------


within the everyday experience of the average juror.”                           Generally, garden-variety claims  


allege  “the  kind  of  emotional  distress  or  humiliation  that  an  ordinary  person  would  


experience in such circumstances.”                      

                    Several courts have distinguished garden-variety anguish from more serious  


conditions, such as depression.                                                                      

                                                  One court, for example, allowed a plaintiff to present  

evidence of “humiliation, embarrassment, and other similar emotions,” such as anger, but  


precluded evidence “about symptoms or conditions that she suffered (e.g., sleeplessness,  


nervousness, depression).”                                                                            

                                           Some courts have identified the relevant inquiry as whether  


the condition required medical treatment.    Others have placed temporal boundaries on  

          46        EEOC  v.  Serramonte ,  237  F.R.D.  220,  224  (N.D.  Cal.  2006)  (quoting  

Fritsch v. City of Chula Vista , 187 F.R.D. 614, 632 (S.D. Cal. 1999)) (internal quotation  


marks omitted).  

          47        State ex rel. Dean v. Cunningham , 182 S.W.3d 561, 564 (Mo. 2006).  



                    See  id. at 569  (stating that plaintiff’s allegation that she was treated for  

depression resulting from defendants’ alleged acts will waive the privilege).  



                    Santelli,  188  F.R.D.  at  309;  see  also  Jacobs ,  258  F.R.D.  at  196-97  

(deeming  allegations  of  insomnia,  depression,  inability  to  focus,  and  anxiety  as  

sufficiently serious to trigger waiver of the privilege).  But see Sorenson v. H & R Block,  


Inc. , 197 F.R.D. 199, 204 (D. Mass. 2000) (holding that allegations of “mental anguish,  


severe  emotional  distress,  humiliation,  personal  indignity,  emotional  pain,  .  .  .  


embarrassment, and anxiety” qualified as garden-variety claims).  



                    See Taylor v. ABT Elecs., Inc., No. 05 C 576, 2007 WL 1455842, at *2  

(N.D.   Ill.   May   14,   2007)   (“[T]he   very   nature   of   ‘garden[-]variety’   emotional  

distress  damages  contemplates  that  they  are  not  necessarily  medically  based,  but  

rather  compensation  for  ‘humiliation,  embarrassment,  and  similar  emotions.’  ”);  

Epstein v. Kalvin-Miller Int’l, Inc., 139 F. Supp. 2d 469, 480 (S.D.N.Y. 2001)  (“A  

‘garden[-]variety’ emotional distress claim is one that did not require medical treatment.”  

(citing Luciano v. Olsten Corp. , 912 F. Supp. 663, 673 (E.D.N.Y. 1996))).  

                                                             -17-                                                       6809

----------------------- Page 18-----------------------

claims, indicating that a claim for mental suffering is not a garden-variety claim if the  

plaintiff alleges ongoing or permanent emotional distress.51  


                     We find several of these limitations appropriate.  A claim is not a garden- 

variety anguish claim if it involves a diagnosable mental disease or disorder, medical  

treatment or medication, longstanding, severe, or permanent emotional distress, physical  

symptoms, or expert testimony.  Garden-variety claims will typically involve emotions  

rather than  conditions.   Limiting potential claims in this way ensures that the alleged  

distress will fall within the common experience of jurors such  that they can readily  


understand the nature or severity of the emotional distress.52  


                     In this case, Kennedy described his mental anguish claim by referring to  


simple emotions.  He asserted that he was “very angry, disappointed, and occasionally  


sad.”  He stated that his “trust levels [were] very low” and that he was “discouraged and  

disappointed”  by  the  actions  of  the  APD.    Because  Kennedy  only  references  his  

emotions, his claim is a garden-variety mental anguish claim.  

                     Feliciano  described  more  severe  symptoms.    He  stated  that  he  was  

“disturbed” by the alleged discrimination.  He elaborated:  

           51        See Verma v. Am. Express, No. C 08-2702 SI, 2009 WL 1468720, at *2     

(N.D. Cal. May 26, 2009) (finding emotional distress claims were not garden variety if   

plaintiff stated that she continued to experience extreme emotional distress nearly two  

years after her alleged wrongful termination); cf. Serramonte, 237 F.R.D. at 224 (noting  


that  plaintiff  no  longer  had  symptoms  of  distress  and  concluding  that  claims  for  

emotional distress were garden variety).  



                     See Ricks v. Abbott Labs., 198 F.R.D. 647, 649 (D. Md. 2001) (“A trier of  

fact  .  .  .  does  not  need  help  understanding  the  ordinary  grief,  anxiety,  anger,  and  

frustration that any person feels when something bad occurs.”); see also Cunningham ,  


182 S.W.3d at 568.  

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----------------------- Page 19-----------------------

                   The  conduct  of  the  APD  has  given  me  the  feeling  that  

                   everything I have done throughout my career has been for  

                   naught.    I  feel  sad,  resulting  in  lower  activity  and  feeling  

                   anxious,      empty,       hopeless,      helpless,      worthless,       guilty,  

                   irritable[,] and restless.  I have experienced insomnia, fatigue,  

                   loss of energy, aches and pains, and a strained relationship  

                   with my wife and children.  

Feliciano also asserted that he “had no confidence” and felt he had to retire from APD.  


                   As  currently framed, Feliciano’s claim goes beyond the scope of mere  

emotions.  Feliciano’s symptoms could suggest that he may suffer from a diagnosable  


mental condition.  Because this claim does more than describe Feliciano’s emotions, it  


is not a garden-variety claim.  

         D.        Other Issues  

                   The Municipality argues that strict limitations should be imposed on proof  


of  mental  anguish  when  there  is  no  waiver  of  the  physician  and  psychotherapist  

privilege.  It contends that the officers’ claims should be based solely on their own  

testimony  and  requests  various  other  specific  limitations  on  the  substance  of  such  


                   The appropriate limitations on proof should mirror the limits placed on  

permitted claims.  Therefore, under the test we adopted above, the officers are precluded  


from introducing evidence of a diagnosable disease or disorder,53 

                                                                                            medical treatment or  

                 54                                                                55                              56 


medication,          longstanding,  severe,  or  permanent  distress,                  physical  symptoms,             or  

         53        Cf. Valiavacharska v. Celaya, No. 10-4847 JSC, 2011 WL 4479341, at *3                            

(N.D.  Cal.  Sept.  26,  2011)  (precluding  claims  of  post-traumatic  stress  disorder  or  




                   Cf.  Epstein,  139  F.  Supp.  2d  at  480  (“A  ‘garden[-]variety’  emotional

distress claim is one that did not require medical treatment.” (citing Luciano , 912 F.


                                                          -19-                                                    6809

----------------------- Page 20-----------------------



expert  testimony.                   Subject  to  these  limitations  on  content,  nothing  precludes  lay  


testimony by individuals other than the claimants. Such limitations on proof will prevent  

the privilege from being used as both a “shield and a sword.” 58  


                       On remand, Feliciano should be permitted the opportunity to limit his claim  



to garden-variety mental anguish.                            If he does not, then he may be ordered to provide the  


requested medical discovery.  Any required release should be reasonably limited to the  


relevant time frame and to those records that could be relevant to the types of conditions  

            54         (...continued)  

Supp. at 673)).  

            55         See Valiavacharska, No. 10-4847 JSC, 2011 WL 4479341, at*3 (limiting                                   

evidence of emotional distress to “that what an ordinary person subjected to similar                              

circumstances would experience and was not prolonged or ongoing”);                                                     Verma, No. C 08­ 

2702  SI,  2009  WL  1468720,  at  *2  (holding  that  plaintiff’s  “claims  for  emotional  

distress — and any proof of them to be presented at trial — shall be limited to the periods  


during  her  employment  when  she  allegedly  experienced  harassment,  retaliation  and  

discrimination,              and      the   period           immediately   following   her   allegedly   wrongful  


            56         See  Santelli  v.  Electro-Motive,  188  F.R.D.  306,  309  (N.D.  Ill.  1999)  

(permitting  plaintiff  to  present  evidence  of  “humiliation,  embarrassment,  and  other  

similar emotions,” but precluding plaintiff from introducing evidence “about symptoms  


or conditions that she suffered”).  



                       Cf. Fitzgerald v. Cassil, 216 F.R.D. 632, 639 (N.D. Cal. 2003) (concluding  


privilege not waived because plaintiffs stipulated they would not affirmatively rely on  

any treating psychotherapist or other expert to prove emotional distress damages).  

            58         See id. at 637.  

            59         See  Verma,  No.  C  08-2702  SI,  2009  WL  1468720,  at  *2  (permitting  


plaintiff  to  limit  her  emotional  distress  claims  as  necessary  to  avoid  waiver  of  the  

privilege, and construing her complaint accordingly).  

                                                                       -20-                                                                 6809

----------------------- Page 21-----------------------


asserted.  Finally, we decline to address issues outside the scope of our order granting  



                   We  REVERSE  the  superior  court’s  order  granting  the  Municipality’s  

motion  to  compel  discovery  and  REMAND  to  the  superior  court  for  proceedings  


consistent with this opinion.  

         60        Both parties make a number of additional arguments in their briefs.  The  

Municipality urges us to impose a limit on damages awarded under AS 18.80.220.  The  


officers make arguments implicating the constitutional right to privacy and the Health  

Insurance Portability and Accountability Act.  But these issues were not designated for  


review and so we decline to address them here.  See Green v. State, 544 P.2d 1018, 1020  


n.6 (Alaska 1976) (declining to review issue not raised in petition for review).  

                                                          -21-                                                       6809  

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